Citation Nr: 9918561
Decision Date: 07/07/99 Archive Date: 07/15/99
DOCKET NO. 95-23 004 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to an increased (compensable) initial rating for
post-inflammatory hyperpigmentation of the feet and ankles.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Thomas D. Jones, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1974 to August
1978.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1995 rating decision of a
Regional Office (RO) of the Department of Veterans Affairs
(VA), which granted the veteran service connection for post-
inflammatory hyperpigmentation of the feet and ankles. A
noncompensable initial rating was assigned, and the veteran
filed a May 1995 notice of disagreement regarding his
assigned rating, initiating this appeal.
The veteran was afforded a personal hearing in April 1997
before a member of the Board. His appeal was thereafter
presented to the Board in May 1997, at which time it was
remanded for additional development.
REMAND
The veteran seeks an increased (compensable) initial rating
for post-inflammatory hyperpigmentation of the feet and
ankles. His appeal was initially presented to the Board in
May 1997, at which time it was remanded for a new VA medical
examination, to include discussion of the symptomatology of
the hands. While the veteran was afforded a new VA
dermatological evaluation in July 1997, the examination
report does not contain the full development required.
Specifically, no description is provided regarding the skin
disease manifestations of the veteran's hands, if any, nor
did the examiner opine whether any skin disease involving the
hands was part and parcel of the service-connected
disability. At his April 1997 Board hearing, the veteran
stated he experiences post-inflammatory hyperpigmentation of
both the feet and hands, and the Board's May 1997 remand
requested a full discussion of these assertions. However,
the July 1997 examination report does not provide a
sufficient basis to address any assertions made with respect
to the veteran's hands.
In light of the above, the Board must reluctantly remand this
claim for a second time, so as to complete the medical
record. In the case of Stegall v. West, the U. S. Court of
Appeals for Veterans Claims (Court) held that "a remand by .
. . the Board confers on the veteran or other claimant, as a
matter of law, the right to compliance with the remand
orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). A
new VA dermatological examination must be afforded the
veteran during an active stage of his skin disability.
Ardison v. Brown, 6 Vet. App. 405, 408 (1994). The
examination must include a complete description of all
disease manifestations of the hands, if any.
As is noted in the introduction of this remand, this appeal
arises from an initial rating of a service connected
disability. In such cases, the Court has stated that
separate ratings can be assigned separate periods of time
based on facts found, a practice known as "staged" ratings.
Fenderson v. West, 12 Vet. App. 119, 126 (1999).
This claim is REMANDED for the following additional
development:
1. The RO should ensure that all
pertinent records of treatment not
already of record are obtained and
associated with the claims folder,
especially any treatment subsequent to
the prior Board remand.
2. The veteran should be afforded a VA
dermatological examination to evaluate
all aspects of his service connected skin
disability. Care should be taken, to the
extent possible, to conduct this
examination during a period when the skin
disorder is active and/or symptomatic. A
notification of examination letter, a
copy of which must be associated with the
claims folder, should be sent to the
veteran advising him of the consequences
of a failure to appear for examination,
pursuant to the provisions of 38 C.F.R.
§ 3.655 (1998). The claims folder and a
copy of this remand should be made
available to the examiner for review in
conjunction with the examination. It is
specifically requested that the examiner
examine the veteran's hands, describe all
current symptoms, if any, and offer an
opinion as to whether any skin disease
involving the hands is part and parcel of
the service-connected skin disorder, now
involving the feet and ankles. All
disabling symptoms, such as the presence
or absence of itching, exudation,
exfoliation, disfigurement, repugnancy,
etc., should be set forth in some detail
with specific attention to any functional
impairment during periods of
exacerbation. The medical basis for all
opinions expressed should be indicated.
3. After completion of all requested
development, the RO should review the
examination report to ensure that it is
complete. The veteran's claim should
then be adjudicated. In so doing, the RO
must also consider if a staged rating is
warranted, based on the evidence of
record, in compliance with the Court's
pronouncements in Fenderson, supra. If
the actions taken remain adverse to the
veteran, he and his representative should
be furnished with a supplemental
statement of the case. They should then
be afforded a reasonable opportunity to
respond.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified, but he may furnish additional
evidence and argument while the case is in remand status.
Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v.
Brown, 8 Vet. App. 109 (1995).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
N. R. ROBIN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).